Parliaments, both state and federal have the power to confer judicial power on various tribunals. Today the vast number of tribunals that litter the judicial landscape do much of the heavy lifting in administrative and related fields of law: immigration review matters, guardianship law, consumer dispute issues, Centrelink review matters, and much more. Often tribunals have a flexibility that courts lack, with a review of the merits of the case, hearing it from the start, rather than just reviewing an issue of law. The Administrative Appeals Tribunal is a case, in reviewing Centrelink and other administrative matters.
State parliaments can confer, or give, judicial power to State tribunals, but such tribunals cannot exercise Federal jurisdiction, that is, decide on “Federal; matters, because that would be contrary to the Constitution. However, there are areas where matters get tricky, such as seen in the case of Burns v Corbet; Gaynor v Burns [2017] NSWCA 3 (3 February 2017), where there is a dispute between residencts of two states, arising under state law determined by a State tribunal, the tribunal exercising judicial power, but not being a Chapter III Court, as defined by the constitution. Is there an implied limitation on the legislative power of the State relative to sections 75 and 76 of the Constitution on such tribunals which are not Chapter III Courts? Is a State law which confers judicial power on such tribunals inconsistent with section 39 of the Judiciary Act 1903?